Article 134 - Wrongful Refusal to Testify
This section of article 134 covers situations where a service member refuses
to testify in a trial/ court martial when he has no legal justification
for such refusal. The elements to be proven in such cases are as follows:
- That the accused was brought before officials appointed to carry out a
court martial or an officer carrying out investigation (as per Article
32 UCMJ) or an officer taking deposition at a proceeding where a specific
official was presiding/ judging.
- That a) the presiding official directed that the accused should qualify
as witness during the proceedings, b) after the accused had qualified
as witness, the presiding official directed him to answer, in this capacity,
a specified question, c) that at a specific time and place, the accused
refused to follow the directive of the presiding official.
- That the accused's refusal was wrongful and had no legal justification.
- That under these given circumstances, this refusal was against the good
order and discipline expected of members of the armed forces; or that
this refusal brought discredit to the United States armed forces.
Maximum Punishment for Wrongful Refusal to Testify
The accused faces maximum punishment of dishonorable discharge, forfeiture
of all pay and allowances and 5 years confinement if he is found guilty
of this charge.
Explanation of Terms
Here, 'qualifying as witness' refers to the accused's declaration
that he will testify during the legal proceedings in a truthful manner.
The accused shall be charged with wrongful refusal to testify if the legal
proceeding in which he refuses to do so is a court martial, military commission
or court of inquiry.
Points to Note:
- The accused cannot defend himself by stating that he mistakenly believed
that his right to remain silent applied when he was asked to testify by
an authorized official at a proceeding where he was a qualified witness.
The witness cannot be forced to testify to facts that may be self incriminatory.
Refusal to testify to such facts may not be deemed as
wrongful refusal to testify. This defense may not be applicable if the accused has been
granted immunity of some kind which prevents his prosecution for any facts
revealed by his testimony.
- The accused may defend his refusal if the testimony which he was directed
to give is derogatory to him or aimed at degrading him in some way. However,
if the prosecution can establish that this question, although derogatory
is material to the trial, the accused shall not be able to use this defense
to protect himself. Here, 'material' means that the testimony/
question is relevant and significantly important to the matter being investigated
during the trial.
US v. Webster, 1 MJ 496 (AFCMR 1975) it was established that if the witness is refusing
to testify at a Article 32 investigation citing his article 31 rights,
he is deemed to be "unavailable". A sworn statement may be considered
in such situations by IO.